If an ILA strike happens...

Wednesday, September 19, 2012

Contract negotiations between the International Longshoremen’s Association (ILA) and the employers of its members, represented by the U.S. Maritime Alliance (USMX), resume today with the assistance of mediators provided by the Federal Mediation and Conciliation Service.
Hopes are high among shippers that the mediator will be able to help the two sides reach agreement, or at least keep them talking and ports open when their current contract expires at the end of September.
But if that doesn't happen—if ILA members go on strike or get locked out from terminals by employers—what might happen then?
In addition to shutting down ports from Maine to Texas, the ILA might also seek support from other unions.
Virgil Maldonado, president of ILA Local 1588 in Bayonne, N.J., said his 398 members voted unanimously on Monday night not only to authorize a strike by the ILA if no agreement is reached by Sept. 30, but also approved the expenditure of $100,000 for picketing at other ports.
The purpose of the funds is to “pay for our members' flights to go to other ports around the world,” Maldonado said. “If there is a strike, I can definitely see members going to other ports.”
On several occasions, ILA President Harold Daggett has talked enthusiastically about the support members of the International Longshore and Warehouse Union gave the ILA in 1977 when it set up picket lines during a strike.
The ILA has also posted statements of support from the International Dockworkers Council and unions in Spain, Portugal, Uruguay, Canada and other countries and last week joined with five U.S. unions in forming the Maritime Labor Alliance.
The ability of unions to engage in sympathy strikes and honor another union’s picket lines is a contractual issue, at least in the United States.
If a strike by the ILA or a lockout by employers occurs after the current contract expires, President Obama could use provisions within the Taft-Hartley Act to declare a national emergency and return the longshoremen and employers to the bargaining table and prevent a work stoppage for an 80 day cooling off period.
The president would do that by first appointing a board of inquiry, which produces a report for him on the dispute. Upon receiving the report, he can direct the attorney general to seek an injunction in a U.S. District Court if the court finds the work stoppage affects an entire or substantial part of an industry, and will imperil the nation's health or safety.
The two parties would then be required to resume bargaining for another 60 days, again with the assistance of a federal mediator.
After 60 days, if the dispute has not been settled, the board of inquiry reconvenes and issues another report to the president. They report on the efforts that have been made toward settlement, the position of each of the parties, and the last offer of settlement from the employer.
Then, while the cooling-off period continues, the National Labor Relations Board during the next 15 days allows employees to vote by secret ballot on whether they want to accept the final offer from management. Within five days, the NLRB certifies the results of the election.
The president then submits to Congress a report on the proceedings, along with the results of the ballot by the NLRB, along with his recommendations, but after this 80-day period, a strike or lockout can resume. Congress could, theoretically, pass legislation and impose a settlement on the parties. It does not appear that has ever happened under Taft-Hartley, though it has under the Railway Labor Act.
Of course, there is considerable speculation about what the political fallout would be if President Obama was to use the emergency powers under Taft-Hartley, because it has been a bête noire for the labor movement since it became law in 1947 over President Truman’s veto. (However, Truman did use those powers once they were available to him.)
Even though the Bureau of Labor Statistics says only 11.8 percent of workers (just 6.9 percent of those in the private sector) belong to a union, Obama may feel he needs the support of unions during the current election and not want to risk incurring their enmity.
On the other hand, many shippers feel that given the weak economy and the nation’s growing dependence on international trade Obama would have as much to lose by not using Taft-Hartley to end a walkout.
In 2002, about 200 ships waited offshore for U.S. West Coast ports to reopen. The president may not want pictures of that sort of back-up on the television just weeks before the election.
Last month, the National Industrial Transportation League wrote to Transportation Secretary Ray LaHood asking for his assistance in getting the ILA-USMX talks restarted.
At a press conference last Friday at the U.S. Merchant Marine Academy, LaHood said he did not have a sense whether the president would use Taft-Hartley to end a strike if one occurs.
His department is monitoring the negotiation, but he said “we will leave it up to the longshoremen and others to work it out.”
Complicating the situation for shippers who might be seeking an alternative to move cargo through the East or Gulf coasts in the event of a strike or lockout is ongoing negotiations on the West Coast between employers and another union - Local 63, the Office Clerical Unit of the International Longshore and Warehouse Union. Members of that local do not actually load and unload ships, but do clerical work at 14 terminals and ship agencies in the Los Angeles/Long Beach area.
On one hand, those negotiations (which the parties have said will continue through at least Sept. 26) could be viewed as reassuring, since the two sides have kept talking - albeit in an off-again, on-again fashion - for more than two years. The contracts between Local 63 workers and the 14 companies (each of which has a separate contract, but all are represented by a common bargainer) have been working without a contract since June 30, 2010.
On the other hand, those talks have been punctuated over the past two years with three port strikes against selected employers - two lasting one day and another nine days. A mediator in April held that other ILWU members could honor a Local 63 OCU picket line, and that has resulted in some shippers imagining a nightmare scenario in which both the ILA and ILWU are on strike at the same time.
If there is a strike by longshoremen and President Obama decides to use Taft-Hartley, there is plenty of precedent.
Dennis R. Nolan, professor emeritus at the University of South Carolina School of Law, who was one of three people to advise President Bush when he used Taft-Hartley to end a lockout by the ILWU in 2002, said in a 2004 article that it has been used 11 times in longshore disputes, more often than in any other industry, and about a third of the instances in which the Taft-Hartley’s emergency powers have been used.
The law says if a threatened or actual strike or lockout affects “an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission or communication among the several states or with foreign nations, or engaged in the production of goods for commerce,” and if it continued, would “imperil the national health or safety.”
(Interestingly, the phrase “health or safety” was the subject of a discussion between freshman Rep. John F. Kennedy and Rep. Thomas Owen on the floor of the House when the law was debated in 1947. Owen argued for substituting “welfare or interest,” but Kennedy thought it was too broad. “I would not interfere in an automobile strike because while perhaps that affects the national interest, it does not affect health and safety,” he said. )
Some scholars, and even a 1970 Department of Labor review, found the effects of national emergency strikes have been “seriously exaggerated” by boards of inquiries and courts, said Michael LeRoy, a University of Illinois law professor who wrote a lengthy article about the law.
For example, the Department of Labor said foreign trade patterns “failed to reveal any long-term effects which could be directly attributed to the strikes.”
But as container trade has grown, the rationale for invoking Taft-Hartley may be easier.
For example, U.S. container traffic has grown from about 15.6 million TEUs (7.4 million through Atlantic and Gulf ports) in 1990 to about 42.3 million TEUs (20.7 million through the Atlantic and Gulf ports) in 2011.
In 1977, when the last coastwide ILA strike occurred, merchandise trade - both imports and exports - was equal to 12 percent of U.S. gross national product; today they are equal to about 24 percent. (Though some of that increase is due to the rising price of oil which is not usually handled by ILA members).
Despite the language about peril to “national health and safety,” in practice, scholars say if a president seeks an injunction, he is likely to get what he wants. Only four times has a court decided not to issue an injunction when the president asked, LeRoy said.
Nolan wrote in a 2004 article that the entire Taft-Hartley process for dealing with emergency disputes is “a package of delaying actions that would combine mediation with public and political pressure to encourage settlements. For lack of any acceptable alternative, Congress cobbled together a half-hearted compromise that was neither fish nor fowl—but would at least let the victors claim that they had solved the problem of national emergency strikes.”
Such boards of inquiry can proceed quickly. Nolan said they are typically appointed one day and report to the president the next. In one case, the board met and sent its report to the president the same day.
“That extremely short fuse means the board cannot possibly conduct a serious investigation, which in turn means that its report can be nothing more than a bare-bones summary of the issues,” said Nolan, who sat on the board in 2002 with former Sen. William E. Brock, who also served as labor secretary for President Reagan and University of Tennessee law professor Patrick Hardin.
John L. Lewis, who served as president of the United Mine Workers of America from 1920 to 1960, called the boards of inquiry “a whistle stop on the road to an injunction,” and Nolan recalled how Hardin quipped “they could have sent a trio of trained monkeys out here to do what we did.” (Nolan said when he recounted that remark to Eugene Scalia, President Bush’s solicitor of labor, he rejoined “we didn’t have time to train the monkeys.”)
“To put it bluntly, the entire ‘national emergency’ procedure amounts to a delaying tactic, conducted in the hope that extra time and public attention would combine with the parties’ good sense to produce a settlement that seemed unachievable a few months later,” Nolan wrote.
LeRoy notes that part of the thinking behind the Taft-Hartley process was to give the union rank-and-file at the end of the first 60 days of the cooling off period an opportunity to vote up or down management’s last offer on the theory that they may have different goals than their union leadership.
But in 1948, when a members of the ILWU were given an opportunity to vote on management's offer, the union asked members not to vote and not a single ballot was cast.
The use of the national emergency provisions of Taft-Hartley have become increasingly rare. It was used eight times from 1947-49, nine times from 1950-1959, 12 times from 1960-1969, and six times from 1970-1979, and not again until 2002. When President Carter tried to use it in 1978 to stop a coal strike, a court refused to grant an injunction, saying the government had not shown it would result in “irreparable harm to the national health or safety.”
If Bush’s board of inquiry turned around its report so quickly, then why did the 2002 West Coast longshore dispute last 11 days?
LeRoy speculated one of the reasons was that it involved a lockout, not a strike.
“That’s what made that a very different dispute,” he said.
The ILWU lockout began on Sept. 27, but Bush did not appoint a board until Oct. 7.
To use the emergency powers in the Taft-Hartley Act, “there are so many calculations that go into that,” Nolan said. “Political, economic, negotiating. It doesn’t particularly surprise me the particular duration.”
“For example, at the front end when the president knows there is a problem arising - intervention by a president at an early stage might mess up negotiations and actually interfere with reaching an agreement. So the president is going to wait until it is necessary,” he said.

“Depending on the magnitude—how effective the strike or lockout is, that can make a difference, too. If it is not very effective, and people have work-arounds or inventories built up, then the president is not going to waste political capital by jumping into the middle of a labor dispute,” Nolan added.
“And then there is the pure political aspect of not wanting to tackle a union. Bush, for instance, had lots of other reasons to fight with Democrats, and the last thing he needed was a little side war going on with the ILWU.”
Employers said they locked out the ILWU in 2002 due to a worker slowdown.
“The president might have been a little more reluctant in that case,” because by stopping the lockout, he might have feared he would interfere with employer’s ability to prevent the slowdown, Nolan explained.
“A Republican president going against the bargaining tactics of a group of employers—you can understand the politics of that,” he said. - Chris Dupin